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BREAKING: GOP Judge O'Connor in #TexasFoldEm case rules against the entire ACA* based on utter insanity, as I've warned for months.

Fri, 12/14/2018 - 8:03pm

*....pending an immediate appeal, all the way up to the Supreme Court over the next year or so, which means a LOT of lawyers are about to make a LOT of billable hours.

Before you read anything else: DON'T PANIC. An injunction against the ACA was not included with the ruling (at least, not yet). The 2019 Open Enrollment Period isstill ongoing through Saturday night in 44 states and longer than that in the other 6 + DC.

If you haven't enrolled for 2019 healthcare coverage yet, now is still the time to do so.

Obamacare was gutted by a Texas federal judge in a ruling that casts uncertainty on insurance coverage for millions of U.S. residents.

The decision Friday finding core provisions of the Affordable Care Act unconstitutional comes just before the end of a six-week open enrollment period for the program in 2019 and underscores a divide between Republicans who have long sought to invalidate the law and Democrats who fought to keep it in place.

U.S. District Judge Reed O’Connor in Fort Worth agreed with a coalition of Republican states led by Texas that he had to eviscerate the Affordable Care Act, the signature health-care overhaul by President Barack Obama, after Congress last year zeroed out a key provision -- the tax penalty for not complying with the requirement to buy insurance. The decision is almost certain to be appealed all the way to the Supreme Court.

The court's decision is NOT limited to guaranteed issue and community rating. In the court's view -- and this is *absolutely* insane -- the entire Affordable Care Act is unconstitutional.pic.twitter.com/kHXU4E9wrH

I'll be back with more updates in a little while. It's gonna be a long night...and a long weekend.

OK, I'm back...I'm gonna list Bagley's tweets in bullet form to make it faster and easier to read, but he gets full credit for this:

The court's decision is also not limited to the plaintiff red states. That means the blue states -- California et al. -- can take an appeal.

Becausethere's no injunction (not yet, anyhow) the Trump administration would not be in contempt if it continued to implement the ACA. Nor, I think, does it need to secure a stay pending appeal -- though I could be wrong about that. Which means that EVERYONE SHOULD STAY CALM.

As I've said before, reasonable minds can differ about whether a penalty-free individual mandate is unconstitutional, as the court has said. All the action is on whether the mandate is severable.

Oh, by the way -- he issued this decision the night that open enrollment ended. You think that was a coincidence? I've got a bridge to sell you.

On severability, the judge cites the relevant legal standard. You would've thought that would have resolved the question: we all know that Congress in 2017 wanted an ACA without the mandate. Why? Because that's what it voted for.

The judge starts by going by to the 2010 Congress, which thought the individual mandate essential. Now, that doesn't imply that THE WHOLE STATUTE has to fall if the individual mandate goes. But that's how the judge reads it.

The intent of the 2010 Congress, however, isn't what matters here. So all the real fighting happens in the judge's discussion of the 2017 Congress. And that's where things get weird.

"There is no answer." Seriously? Hey, Judge O'Connor, I'm old enough to have lived through the repeal-and-replace debate. IT WAS LAST YEAR. And I'm confident about two things: (1) that Congress didn't repeal the whole ACA, and (2) that it did repeal the mandate penalty.

As for the claim that the penalty was not the individual mandate, that'd have come as a surprise to every Republican official who said they'd REPEALED THE INDIVIDUAL MANDATE. If you're measuring congressional intent, shouldn't that matter?

Oh, it gets better! He says that it's the blue states that are asking him to be an activist judge!

He goes on in that vein: "Nothing to see here, I'm just doing my job." if you can read this claim that he's just a judicial minimalist without gales of laughter, you're a better person than I am.

I haven't even gotten to the standing analysis, such as it is. The judge here says that the plaintiffs -- two individuals -- are subject to the "individual mandate," and therefore suffer injury.

Never mind that this individual mandate -- the purported unconstitutionality of which is SUCH A BIG DEAL that the entire rest of the ACA has to fall -- IS COMPLETELY UNENFORCEABLE.

The judge credulously accepts the individual plaintiffs' claims that they would be "freed from arbitrary governance." But eliminating the mandate penalty did exactly that. It freed them!

I'm gobsmacked. This judge honestly thinks the Constitution requires the elimination of the entire ACA -- including its Medicaid expansion, its provisions about calorie counts at chain restaurants, and its new rules on biosimilars -- because of an unenforceable "mandate"?

If you were ever tempted to think that right-wing judges weren't activist -- that they were only "enforcing the Constitution" or "reading the statute" -- this will persuade you to knock it off. This is insanity in print, and it will not stand up on appeal.